Bell v. Keach
| Decision Date | 28 January 1882 |
| Citation | 3 Ky.L.Rptr. 653,80 Ky. 42,3 Ky.L.Rptr. 520 |
| Parties | Bell v. Keach. |
| Court | Kentucky Court of Appeals |
1. Although appellee had not been legally married to his housekeeper, yet having lived with her for twenty years, and had a son nineteen years old by her, he was under a natural and moral obligation to support his son, and is held to be a housekeeper and entitled to the statutory exemptions.
2. There was no alteration in the bond sued upon.
APPEAL FROM JEFFERSON COURT OF COMMON PLEAS.
M. A. & D. A. SACHS FOR APPELLANT.
The court erred in its instructions, and in refusing those asked for by appellant. Appellee is not in any reasonable sense a housekeeper. His housekeeper was not his, and his connection with her was simply adulterous. The son was not born in wedlock. It can hardly be presumed that he who openly violates law can successfully appeal to its protection as a debtor. (McMurray v. Shuck, 6 Bush, 111; Brooks v Collins, 11 Ib., 627; Thompson on Homestead Exemptions, 47; 15 B. Mon., 503; 5 Rich. S. C., 500; Gen Stat., chap. 38, art. 13, 430-435; Acts 1876, vol. 1, 70; Chamberlain & Tapp v. Brave, 3 Bush, 569.
J. L CLEMMONS FOR APPELLEE.
There was no error in the instructions given, and none was committed in refusing those asked for by appellant. Appellee is a housekeeper, and entitled to the exemption fixed by the statute. (Gunn v. Gordehus, 15 B. Mon., 447; Civil Code, sec. 643.) No alteration was made in the bond.
This is an action upon an indemnifying bond to recover damages for the seizure and sale, under execution, of property claimed by the owner to have been by law exempt.
The court below, in pursuance of special verdicts of the jury fixing the value of the property at $100, and damages for the seizure and sale at $290, rendered judgment for $390.
The opinion of the witness as to the extent appellee was injured in respect to his crop by the seizure and sale, and which appellant moved to exclude from the jury for incompetency, was asked, and given after he had stated he was acquainted with the property, its value, also with the condition and business of appellee; and though, upon cross-examination, he stated he was guessing at the amount of damages sustained, he manifestly intended, and was without doubt understood by the jury, to convey the idea simply that he, in his own language, " had not made an itemized account of the damages." The motion of appellant was therefore properly overruled.
Whether the court below erred in refusing the instructions asked by appellant, and giving others in lieu of them, depends upon the manner in which the two questions to which they relate, the main ones in this case, should be determined. They are--1st. Whether appellee was, at the time of the seizure and sale, a bona fide housekeeper with a family within the meaning of the statute? 2d. Whether the indemnifying bond was so altered, after being signed, as to release the obligors, or either of them?
The first question is of easy solution, because dependent upon simple tests.
If a debtor is a housekeeper, and has a family, composed of one or many persons besides himself, whom he is under a natural or moral obligation to support, or who are dependent upon him therefor, he is entitled to the benefit and protection of the exemption laws.
For, as said by this court, in the case of Brooks v. Collins, 11 Bush, 622, " the evident purpose and meaning of the law-making power in placing the exempted property beyond the reach of creditors, was to enable the head of the household to provide for himself and his family, or those who are living with him and dependent upon him for a support."
The statement of appellee as a witness, which being uncontradicted must be taken as true, is that he had been a housekeeper with a family for many years, and was so at the time his property was seized and sold by the officer; that his family then and now consisted of a woman, who was his housekeeper, but to whom he had not been married until this action was brought; that the woman had lived...
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